Terms of use for the Openpack platform of CIPA GmbH

§ 1 General regulations and scope of application

(1) The company CIPA GmbH, Hermann-Brenner-Platz 1, 92637 Weiden (hereinafter “CIPA”), represented by the managing director Dr. Stefan Uebelacker, offers merchants within the meaning of the German Commercial Code and legal entities under public law as customers or providers (hereinafter “users”) the opportunity to use a business-to-business trading system and other services listed under § 2 para. 2 on the “Openpack” online platform operated by CIPA (hereinafter: “Platform”) in accordance with the provisions of these Terms of Use.

(2) These Terms of Use conclusively contain the conditions applicable between CIPA and the user for the services offered by CIPA within the framework of this service contract. The validity of any regulations of a party existing outside of these Terms of Use, in particular the user’s general terms and conditions or regulations conflicting with these Terms of Use, is expressly excluded. Such provisions shall not be included even if a declaration aimed at inclusion is not made or not expressly contradicted, for example by references on the business paper, delivery bills or similar. With the admission according to § 3, the user acknowledges these terms of use as authoritative.

(3) Regulations from any individual agreements or framework agreements between the user and CIPA take precedence over these Terms of Use. Supplementary contractual components in addition to this Agreement of Use are the individual agreements made between the user and CIPA, as they result in particular from offers of CIPA together with its appendices (in particular the description of services on the platform).

(4) All agreements which are made between CIPA and the user for the purpose of implementing the contract are to be recorded in text form.

(5) The user shall be informed of changes to these terms of use by CIPA in writing, by fax or by e-mail. If the user does not object to such changes within six weeks after receipt of the notification, the changes shall be deemed agreed. The user will be informed separately about the right of objection and the legal consequences of silence in case of a change of the Terms of Use.

§ 2 Services of the CIPA

(1) Openpack is a platform for customers and providers for the trade of goods, services and apps. The platform has an integrated, automated messaging system to simplify communication between the customer and the provider, as well as extensive functionality for managing and monitoring all current business transactions.
(2) The services of the CIPA result from their respective current specifications, which can be viewed under https://openpack.net/list-of-services/?lang=en and also consist, among other things, of the following

(a) The provision and maintenance of access to the platform as a cloud application for the indirect procurement of products/services from providers after the user has been approved in accordance with § 3,

(b) Enabling the conclusion of contracts on the platform pursuant to § 4,

(c) Creation of information and communication opportunities among users or contracting parties,

(d) Consultancy and support services for the users according to a separate agreement with CIPA.

(3) CIPA owes an annual average availability of the platform for the services to be provided by CIPA of 99%. This includes necessary maintenance work. An interruption may not continue for longer than 48 hours.

§ 3 Admission and access to the platform

(1) Prerequisite for the use of the platform is the admission by CIPA. The platform is directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code). CIPA can therefore demand before conclusion of the contract that the user sufficiently proves his entrepreneurial status, e.g. by stating the VAT ID number or by other suitable proofs. The data required for the proof must be provided by the user completely and truthfully. There shall be no claim to admission or use of the platform.

(2) In the application for admission, the User has to state his company data, invoice data and a contact person as well as whether he wishes to use the platform for sales and/or purchases. Acceptance of the application for admission shall be effected by confirmation of admission by sending a user ID and password by e-mail.

(3) The User warrants that the information provided by him, in particular in the context of his application for admission pursuant to paragraph 2, to CIPA and other Users is true and complete. He undertakes to notify CIPA immediately of any future changes to the information provided. The same applies to all information provided by the user when setting up employee logins.

(4) CIPA has the right to withdraw the admission of a user, to delete his data, to warn him, to restrict his access to the platform or to block it temporarily or permanently if there is sufficient suspicion that he has violated these Terms of Use or legal regulations. The User may avert these measures if he dispels the suspicion by submitting suitable evidence at his own expense. In selecting the measure, CIPA shall take into account the legitimate interests of the user.

(5) All logins are individualized and may only be used by the respective authorized user. The user is obliged to keep login and password secret and to protect them from unauthorized access by third parties. The user is also responsible for keeping employee logins secret and will instruct his employees accordingly. In case of suspicion of misuse by a third party, the user shall inform CIPA immediately. As soon as CIPA becomes aware of the unauthorized use, CIPA will block the access of the unauthorized user. CIPA reserves the right to change a user’s login and password, in which case CIPA will notify the user immediately.

§ 4 Conclusion of contracts on the platform

(1) Providers have the possibility to post goods, services and apps. Customers can submit binding offers hereupon. Goods, services and apps can only be posted by providers and do not constitute a legally binding offer within the meaning of § 145 BGB, but only an invitation to submit offers (“invitatio ad offerendum”).

(2) Customers have the opportunity to select providers according to individual criteria and to submit binding offers or place orders for their goods, services and apps. CIPA then transmits these offers/orders via the platform to the respective provider. The offers of a customer are binding and irrevocable declarations for the conclusion of the service tendered by the provider.

(3) A customer is free to choose whether and which of the existing offers (“invitatio ad offerendum”) he wishes to use to submit his offer. Unless otherwise agreed between Customer and Provider, a contract shall be deemed concluded if a Provider accepts a Customer’s offer by sending an individual or framework agreement order.

(4) Actions using the respective login of a user are generally attributable to the user. Users are responsible for all declarations of intent made on the platform. For declarations made by third parties under the User’s member account, the Users shall be liable to a foreseeable extent in accordance with the principles of a contract with protective effect for third parties.

(5) For all transactions on the platform, the system time applicable on the platform shall apply exclusively.

(6) CIPA reserves the right to change or expand the content and structure of the platform as well as the associated user interfaces if the fulfilment of the purpose of the contract concluded with the user is not or not significantly impaired by this. CIPA will inform the users of the platform about essential changes within a reasonable period of time.

§ 5 Duties of the user

(1) The offering of goods, services and apps may not take place if

(a) the information is so incomplete that the object and price cannot be determined

(b) the placement, sale of goods and apps or the performance of services according to the legal system applicable to the intended contract would violate statutory provisions, official orders or morality. In particular, no items may be offered whose offering or sale would violate the rights of third parties. CIPA shall be entitled to remove such a listing or offer from the platform without delay.

(2) Goods or services which may only be offered against a legally prescribed proof may only be offered and requested on the platform if the proof has been included in the description of the goods or services and the goods or services are only provided against the legally prescribed proof.

(3) With the admission according to § 3, the user guarantees to CIPA and all other users that the user complies with the requirements of data protection law with regard to the data transmitted by him and indemnifies CIPA from any claims, including those of a public law nature. In particular, the user must inform the persons acting on his behalf on the platform (in particular employees) about the data processing processes required for this by CIPA in accordance with the CIPA data protection declaration under [https://openpack.net/privacy-policy/?lang=en] and obtain the consent of these acting persons, if necessary, before their personal data are placed on the platform within the scope of setting up employee logins or in any other way.

(4) The user undertakes to process contracts which are initiated or come about through the use of the platform exclusively via the latter. Furthermore, the user undertakes to provide CIPA, upon its request, with written information on all contracts and order volumes which come into existence through the use of the platform.

§ 6 Obligations of the user to cooperate

(1) The user actively supports the activities of CIPA necessary for the implementation of the agreement. In particular, he shall create on his own account the necessary conditions in the area of his sphere of operation which are necessary for the proper execution of the agreement.

(2) The transfer point for all data is the router exit of the computer center used by CIPA to the Internet. CIPA shall be entitled to redefine the data transfer point at any time after prior notice in text form (at least 3 months in advance) if this is necessary to enable the customer to use the services smoothly. The user is responsible for establishing and maintaining the data connection between the user’s IT systems and the data transfer point.

(3) The user shall provide CIPA with the necessary information for the intended areas of application and about all other factors and requirements necessary for the specification of the services of CIPA.

(4) In the event that services of CIPA are used by unauthorized third parties using the user’s access data, the user shall be liable for any resulting fees within the scope of civil law liability until receipt of the order by the user to change the access data or to report the loss or theft, provided that the user is at fault in the access of the unauthorized third party.

(5) If the user does not fulfill his contractual obligations or does not do so in a timely manner, this may result in delays in performance and additional efforts and costs, which shall be borne by the user.

§ 7 Remuneration and commission; terms of payment

(1) The user undertakes to pay remuneration and/or a commission to CIPA for the use/services of the platform. The amount shall be based on the current price lists of CIPA under [Link], unless otherwise agreed in writing.

(2) The user undertakes to provide CIPA with information about a conclusion of a contract which comes into being from and in connection with the use of the platform immediately and without being requested to do so in writing and to inform CIPA about increases or reductions of the order volume.

(3) The remuneration or commission payments to be made in each case shall be settled – unless otherwise agreed – by the 10th of each month for the respective previous month and shall be due immediately after the issue of the invoice without deduction, but plus value added tax at the respectively applicable tax rate. Unless otherwise agreed, payment of an invoice amount must be made within 20 days of the invoice date.

(4) CIPA reserves the right to compare and adjust invoices by the 20th of each month, considering paragraph 2.

(5) CIPA reserves the right to inquire with users whether contracts have been concluded and whether orders or the order volume have changed again or have been adjusted after initiation or conclusion of the contract using the platform. In this case, the user undertakes to provide information in accordance with § 5 Paragraph 4.

§ 8 Processing of the contracts concluded on the platform

(1) The processing of contracts concluded on the platform is the sole responsibility of the respective users. For contracts concluded on the platform, CIPA does neither guarantee their fulfilment nor assume liability for material or legal defects of the goods and services traded. CIPA is not obliged to ensure the fulfilment of the contracts concluded between the users.

(2) CIPA cannot guarantee the true identity and the power of disposal of the users. In case of doubt, both contractual partners are obliged to inform themselves in a suitable manner about the true identity and the power of disposal of the other contractual partner.

§ 9 Liability of CIPA

(1) Within the framework of the use of the Openpack Marketplace, CIPA shall only be liable without limitation for a failure for which it is responsible in the event of intent and gross negligence, but for simple negligence only in the event of a breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the user may regularly rely. The liability in the event of a breach of such an essential contractual obligation shall be limited to the contract-typical and foreseeable damage which CIPA had to expect at the time of conclusion of the contract on the basis of the circumstances known at that time, however, up to a maximum amount of 20,000 € per case of damage and 100,000 € per calendar year per company/plant of a user.

(2) The liability for indirect and unforeseeable damages, loss of production and use, loss of profit, lack of savings and financial losses due to third party claims shall be excluded in case of simple negligence – except in case of injury to life, body or health.

(3) CIPA shall not be liable for disturbances within the line network for which CIPA is not responsible.

(4) CIPA is only liable for the loss of data in accordance with the preceding paragraphs if such a loss could not have been avoided by the user through appropriate data security measures.

(5) The liability does not extend to impairments of the contractual use of the services provided by CIPA on the platform which have been caused by an improper or faulty use by the user.

(6) The aforementioned limitations of liability shall also apply analogously in favour of representatives, employees, vicarious agents and organs of CIPA.

(7) Insofar as the platform offers the possibility of forwarding to third parties’ databases, websites, services, etc., e.g. by setting up links or hyperlinks, CIPA shall not be liable for the accessibility, existence or security of these databases or services, nor for the contents thereof. In particular, CIPA is not liable for their legality, correctness of content, completeness, topicality, etc..

(8) Claims for damages against CIPA shall become statute-barred in accordance with the statutory provisions and in deviation from § 199 Para. 3 No. 1 and No. 2 BGB at the latest five years from the time at which the claim arose and, irrespective of the time at which the claim arose, at the latest ten years from the commission of the act, the breach of duty or the other event causing the damage. Excluded from this are claims for damages due to injury to life, body or health and/or claims for damages due to damages caused by CIPA through gross negligence or intent. In this respect the statutory periods of limitation apply.

(9) Within the scope of the use of free services according to § 7 para. 6 CIPA is only liable for intent.

§ 10 Rights and obligations of the user in the event of disruptions

(1) The user shall describe malfunctions in as much detail as possible, describing the symptoms, the operating conditions, preceding instructions to the system and any relevant third-party machines or systems. A malfunction shall be deemed to exist if the functionality specified in the performance description does not fulfil essential functions or provides faulty results so that their use becomes impossible or is considerably restricted. The fault must be reported immediately after its discovery.

(2) CIPA shall support the user by telephone or other remote communication channels regarding the use of the platform and in the event of malfunctions.

(3) CIPA shall eliminate disturbances in the use of the platform according to the technical possibilities. CIPA will eliminate disturbances in the use of the platform by suitable measures of its own choice.

(4) The user’s right of self-remedy in case of malfunctions is only permissible after prior confirmation by CIPA in text form. The right to remedy disturbances by CIPA shall remain unaffected by this.

(5) The strict liability for errors in computer programs already existing at the time of conclusion of the contract is excluded.

(6) Warranty rights of the user are excluded insofar as the user has made unauthorised changes to the platform which is the subject matter of the contract or the platform has been used improperly, unless these changes and uses had no influence on the occurrence of the error.

(7) Warranty claims shall become statute-barred one year after the time of provision or the time of provision or acceptance of a service agreed in the order confirmation. This shall not apply if a defect was fraudulently concealed and/or insofar as CIPA has assumed a special form of manufacturer’s warranty. Excluded from this are claims for damages due to injury to life, body or health and/or claims for damages due to damages caused by CIPA through gross negligence or intentionally. In this respect the statutory periods of limitation apply.

§ 11 Force majeure

(1) If, as a result of an unforeseen event beyond the control of CIPA, CIPA cannot perform its services, in particular in cases of

(a) force majeure, e.g. mobilization, war, epidemics, acts of terrorism, riot, or similar events (e.g. strike, lockout),

(b) Attacks on the IT system of CIPA, insofar as these were carried out despite the usual care taken in the case of protective measures,

(c) Obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law or due to other circumstances, or

(d) not timely or proper self-supply to CIPA, there shall be no breach of duty for the duration of the non-performance.

(2) CIPA shall notify the user in text form of the occurrence of an unforeseen event after it becomes known.

(3) If the end of the prevention of performance cannot be foreseen or if it lasts longer than ten working days, the user is entitled to withdraw from the contract to the exclusion of any further claims or to terminate it extraordinarily; payments paid in advance shall be reimbursed proportionately.

§ 12 Foreign contents

(1) Users are prohibited from posting content (e.g. through links or frames) on the platform that violates legal regulations, official orders or offends common decency. Furthermore, they are prohibited from posting content that infringes the rights, in particular copyright or trademark rights, of third parties.

(2) CIPA does not under any circumstances adopt third-party content as its own. The user guarantees CIPA and the other users of the platform that the goods, services and apps offered by him in postings do not violate any copyrights, trademarks, patents, other property rights or trade secrets.

(3) CIPA reserves the right to block third-party contents if these are punishable under the applicable laws or clearly serve to prepare criminal acts.

(4) The user shall indemnify CIPA from all claims which third parties assert against CIPA due to the infringement of their rights or due to legal violations on account of the offers and/or contents posted by the user if the user is responsible for them. In this respect, the user shall also assume the costs of the legal defense of CIPA including all court and attorney’s fees.

(5) The user grants CIPA the non-exclusive right, limited in time to the term of the contract and geographically unrestricted, to copy, display and use the contents posted by him, in particular pictures and videos, as well as to perform all other acts of use which are necessary for the distribution of the user’s goods, services and apps.

§ 13 Other obligations of the user

(1) The user is obliged,

(a) to set up and maintain the necessary data backup arrangements throughout the entire term of the contract. This essentially refers to the careful and conscientious handling of logins and passwords;

(b) to notify CIPA of any technical changes occurring in his area immediately if they are likely to impair the performance of services or the security of the CIPA platform,

(c) to cooperate in the clarification of attacks by third parties on the platform, insofar as this cooperation is required by the User,

(d) to transact business on the platform exclusively within the scope of commercial business operations for commercial purposes.

(2) The User undertakes to refrain from all measures that endanger or disrupt the functioning of the platform and not to access data to which he is not entitled. Furthermore, the User must ensure that the information and data transmitted via the Platform is not infected with viruses, worms or Trojan horses. The user undertakes to compensate CIPA for all damages resulting from the non-observance of these obligations for which he is responsible and furthermore to indemnify CIPA against all claims of third parties, including legal fees and court costs, which these parties assert against CIPA due to the non-observance of these obligations by the user.

§ 14 Data processing and compliance with confidentiality; protection of secrets

(1) Data Security / Confidentiality of Data Transmission

The servers of CIPA are secured in accordance with the rules of technology, in particular by firewalls; however, the user is aware that there is a risk for all participants that transmitted data may be read out in the transmission path. This applies not only to the exchange of information via e-mail leaving the system, but also to the integrated messaging system and all other data transmissions. The confidentiality of the data transmitted within the scope of using the platform can therefore not be guaranteed.

(2) Processing of non-personal data

(a) The user agrees that CIPA may store and use information and non-personal data on the course of settings as well as the behavior of customers or providers during the execution of these transactions in an anonymized form.

(b) The user provides machine data to CIPA when using the digital platform interfaces.

The user warrants to provide CIPA only with data which is correct in terms of content, which the user is entitled to provide/forward to CIPA to the extent defined below and which has no personal reference.

(ba)
The user grants CIPA a non-exclusive, transferable, sub-licensable, geographically and temporally unrestricted right to use the data provided via the digital platform interfaces, as far as these data are used in anonymous form.

(bb)
For the non-anonymous use of the data provided via the digital platform interfaces by CIPA, a separate explicit consent by the user is required in advance.

By granting this consent, the user grants CIPA a non-exclusive, non-sublicensable, spatially and temporally unlimited right to use the data provided via the digital platform interfaces, which is only transferable to partners selected by the user.

(bc)
Insofar as components of the data provided are protected by intellectual property rights (e.g. by copyright), this right of use shall also cover these intellectual property rights.

(bd)
The user is aware and accepts that all rights to the database resulting from the provided Data, which CIPA creates by including the provided Data, are exclusively owned by CIPA in the relationship between the parties.

(be)
If the contractual relationship between the parties ends, CIPA shall not be obliged to delete the machine data provided via the interface. CIPA’s rights to use such data shall continue to exist.

(3) Processing of Personal Data

(a) During the term of this agreement, CIPA is entitled to process the personal data received from the user in connection with the business relationship subject to the following conditions (b).

(b) With and after the creation of a user Profile and during the use of the Platform, personal data will be processed. The user can find details on which personal data is specifically processed in this context in CIPA’s Privacy Policy under B.II. [https://openpack.net/datenschutz/]. CIPA is entitled to collect and further process the personal data listed under B.II. when creating the user Profile, as this data is necessary to provide the user with the platform offer.

Detailed information on the advertising and analysis trackers used can be found in CIPA’s privacy policy [https://openpack.net/datenschutz/] under E. Tracking and analysis tool. Further information on the tag manager used can be found under D. Online advertising.

For advertising tracking, cookies, device identifiers and similar tracking technologies are stored and used on the user’s end devices. A detailed overview of the services and cookies used for this purpose can be found in CIPA’s Cookie Details [https://openpack.net/cookies-erklaerung/].

Consent to tracking can be revoked by the user at any time.

(4) Protection of Secrets
(a) The contracting parties undertake to treat as confidential all subject matters of the contract which they receive or become aware of from the other contracting party prior to or during the fulfilment of the contract and which are explicitly designated as confidential business or trade secrets, also beyond the end of the contract, unless an exception according to the GeschGehG applies. The contracting parties shall keep and secure these designated business or trade secrets in such a way that access by third parties is excluded.

(b) The contracting parties shall make the subject matter of the contract accessible only to those employees and other third parties who require access in order to perform their official duties. They shall instruct these persons about the need to keep the subject matter of the contract confidential.

§ 15 Payment services

If payment service functions are integrated by CIPA in such a way that it is a payment initiation service within the meaning of § 1 para. 1 sentence 2 no. 7, para. 33 ZAG or an account information service within the meaning of § 1 para. 1 sentence 2 no. 8, para. 34 ZAG, the provisions of the ZAG shall remain unaffected.

§ 16 Assignment and set-off

(1) A partial or complete transfer of the user’s rights from the contract with CIPA to third parties is excluded.

(2) The user shall only be entitled to set-off against CIPA with undisputed or legally binding counterclaims.

§ 17 Duration of contract

(1) The contract on which these terms of use are based is concluded for an indefinite period. It begins with the admission by CIPA according to § 3.

(2) The contract can be terminated by either party with a notice period of three months to the end of the respective quarter.

(3) Either party has the right to terminate the contract for good reason without notice. A good reason for CIPA is in particular:

(a) a user’s violation of the provisions of these Terms of Use, which is not remedied even after setting a deadline,

(b) the tortious act of a user or the attempt of such an act, e.g. fraud,

(c) the user’s delay in payment of the payment obligation according to the commission payment to be made by the user pursuant to § 7 by more than six weeks.

(d) continuous operational disruptions due to force majeure beyond the control of CIPA, such as natural disasters, fire, collapse of line networks through no fault of the user.

(4) Any termination must be made in writing. Notices of termination by fax or e-mail shall be in writing.

(5) The termination of this contract does not affect other agreements between the contracting parties.

§ 18 Final provisions

(1) Oral or written side agreements have not been made. Any change or addition to these terms of use must be made in writing. This shall also apply to any waiver of the written form requirement.

(2) Should individual provisions of these Terms of Use be or become ineffective and/or contradict the statutory provisions, the effectiveness of the Terms of Use remaining shall not be affected by this. The invalid provision shall be replaced by the parties to the contract by mutual agreement by a provision which comes closest to the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply accordingly in the event of loopholes.

(3) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods. Place of jurisdiction for all legal disputes is the place of business of CIPA (Weiden i. d. OPf.). CIPA shall also be entitled to bring an action at the place of performance of the provision or at the user’s general place of jurisdiction.

Date: 08.04.2021